S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    218
 
                        2019-2020 Regular Sessions
 
                             I N  S E N A T E
 
                                (PREFILED)
 
                              January 9, 2019
                                ___________
 
 Introduced  by Sen. BENJAMIN -- read twice and ordered printed, and when
   printed to be committed to the Committee on Health
 
 AN ACT to amend the public health law, the education law and  the  penal
   law,  in  relation  to  requiring anaphylactic policies for child care
   services

   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. This act shall be known and may be cited as "Elijah's Law".
   §  2. Section 2500-h of the public health law, as added by chapter 579
 of the laws of 2007, is amended to read as follows:
   § 2500-h.  Anaphylactic  policy  for  [school  districts]  CHILD  CARE
 SERVICE PROVIDERS. 1.  FOR PURPOSES OF THIS SECTION "CHILD CARE SERVICE"
 OR "CHILD CARE SERVICE PROVIDER" SHALL MEAN CARE FOR ANY CHILD UNDER THE
 AGE  OF EIGHTEEN PROVIDED ON A REGULAR BASIS AWAY FROM THE CHILD'S RESI-
 DENCE FOR LESS THAN TWENTY-FOUR HOURS PER DAY BY SOMEONE OTHER THAN  THE
 PARENT,  STEP-PARENT,  GUARDIAN,  OR RELATIVE WITHIN THE THIRD DEGREE OF
 CONSANGUINITY OF THE PARENTS OR STEP-PARENTS OF SUCH  CHILD;  AND  SHALL
 INCLUDE,  BUT  NOT  BE LIMITED TO: ALL PUBLIC AND PRIVATE ELEMENTARY AND
 SECONDARY SCHOOLS; GROUP FAMILY DAY CARE HOME, FAMILY DAY CARE HOME  AND
 SCHOOL AGE CHILD CARE AS SUCH TERMS ARE DEFINED IN SECTION THREE HUNDRED
 NINETY  OF  THE  SOCIAL SERVICES LAW; A DAY CAMP AS DEFINED IN THE STATE
 SANITARY CODE; AN AFTER-SCHOOL PROGRAM OPERATED FOR THE PURPOSE OF RELI-
 GIOUS  EDUCATION,  SPORTS,  OR  RECREATION;  A  FACILITY  PROVIDING  DAY
 SERVICES  UNDER  AN  OPERATING CERTIFICATE ISSUED BY THE DEPARTMENT, THE
 OFFICE OF MENTAL HEALTH OR OFFICE FOR PEOPLE WITH DEVELOPMENTAL DISABIL-
 ITIES; A KINDERGARTEN, PRE-KINDERGARTEN OR NURSERY SCHOOL  FOR  CHILDREN
 THREE  YEARS OF AGE OR OLDER; AN AFTER-SCHOOL PROGRAM FOR CHILDREN OPER-
 ATED BY A PUBLIC SCHOOL DISTRICT OR BY A PRIVATE SCHOOL OR ACADEMY WHICH
 IS PROVIDING ELEMENTARY OR SECONDARY EDUCATION OR BOTH.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD01766-01-9

 S. 218                              2
 
   2. The commissioner[, in consultation with the commissioner of  educa-
 tion,  shall  establish  an  anaphylactic  policy  for  school districts
 setting forth guidelines and procedures to be followed for  both]  SHALL
 ADOPT AN ANAPHYLACTIC POLICY WHICH SHALL CONFORM TO THE VOLUNTARY GUIDE-
 LINES  FOR  MANAGING FOOD ALLERGIES IN SCHOOLS AND EARLY CARE AND EDUCA-
 TION PROGRAMS PROMULGATED BY THE UNITED STATES DEPARTMENT OF HEALTH  AND
 HUMAN  SERVICES  FOR  ALL  CHILD CARE SERVICES. SUCH ANAPHYLACTIC POLICY
 SHALL BE FOLLOWED FOR BOTH the prevention of anaphylaxis  and  during  a
 medical  emergency  resulting from anaphylaxis. Such ANAPHYLACTIC policy
 shall be [developed] IMPLEMENTED after consultation with representatives
 of pediatric physicians, [school nurses] and other health care providers
 with expertise in treating children with anaphylaxis, parents  of  chil-
 dren  with life threatening allergies, [school administrators, teachers,
 school food service directors]  and  appropriate  not-for-profit  corpo-
 rations representing allergic individuals at risk for anaphylaxis.
   [2.]  3.  The  anaphylactic policy established by [subdivision one of]
 this section shall include the following:
   (a) a procedure and treatment  plan,  including  responsibilities  for
 school  nurses  and  other  appropriate school personnel AND EVERY CHILD
 CARE SERVICE PROVIDER, for responding to anaphylaxis;
   (b) a training course for appropriate [school] personnel for  prevent-
 ing and responding to anaphylaxis;
   (c)  a  procedure and appropriate guidelines for the development of an
 individualized emergency health care plan for children with  a  food  or
 other allergy which could result in anaphylaxis;
   (d)  a  communication plan for intake and dissemination of information
 regarding children with a food or other allergy which  could  result  in
 anaphylaxis; [and]
   (e) strategies for the reduction of the risk of exposure to anaphylac-
 tic causative agents, including food and other allergens;
   (F)  A  COMMUNICATION  PLAN  FOR DISCUSSION WITH ANAPHYLACTIC CHILDREN
 ABOUT FOODS THAT ARE SAFE AND UNSAFE FOR THE CHILD, AND ABOUT STRATEGIES
 TO AVOID EXPOSURE TO UNSAFE FOOD; AND
   (G) A REQUIREMENT THAT EACH CHILD CARE SERVICE PROVIDER SHALL HAVE  AN
 ONSITE  MECHANISM,  INCLUDING BUT NOT LIMITED TO AUTO INJECTORS THAT ARE
 CURRENT AND NOT EXPIRED, THAT WILL IMMEDIATELY REDUCE THE EFFECTS OF ANY
 LIFE-THREATENING ALLERGIES.
   [3. On or before June thirtieth, two thousand  eight]  4.  SIX  MONTHS
 AFTER  THE  EFFECTIVE  DATE  OF  THE CHAPTER OF THE LAWS OF TWO THOUSAND
 NINETEEN THAT AMENDED THIS SECTION,  an  anaphylactic  policy  shall  be
 jointly  forwarded by the commissioner and the commissioner of education
 to each [local school board of education, charter school, and  board  of
 cooperative  educational  services]  CHILD  CARE SERVICE PROVIDER in the
 state. [Each such board and charter school]  EVERY  CHILD  CARE  SERVICE
 PROVIDER  shall [consider and take action in response to] IMPLEMENT such
 anaphylactic policy WITHIN NINETY DAYS OF  RECEIVING  SUCH  ANAPHYLACTIC
 POLICY FROM SUCH COMMISSIONERS.
   5.  (A)  ANY WILLFUL OR NEGLIGENT VIOLATION OF THIS SECTION BY A CHILD
 CARE SERVICE PROVIDER SHALL RESULT IN A CIVIL PENALTY NOT TO EXCEED FIVE
 THOUSAND DOLLARS FOR EACH VIOLATION.
   (B) IF A CHILD CARE SERVICE PROVIDER FAILS TO IMPLEMENT THE GUIDELINES
 AND ANAPHYLACTIC POLICY  PURSUANT  TO  THIS  SECTION,  SUCH  CHILD  CARE
 SERVICE  PROVIDER'S  LICENSE  OR  REGISTRATION SHALL BE REVOKED. A CHILD
 CARE SERVICE PROVIDER MAY, BY WRITTEN REQUEST TO THE COMMISSIONER AND IN
 THE COMMISSIONER'S DISCRETION, BE GRANTED AN EXTENSION OF TIME TO IMPLE-
 MENT THE ANAPHYLACTIC POLICY REQUIRED PURSUANT TO THIS SECTION.

 S. 218                              3
 
   6. THE COMMISSIONER, IN CONSULTATION WITH THE COMMISSIONER  OF  EDUCA-
 TION  AND THE COMMISSIONER OF THE OFFICE OF CHILDREN AND FAMILY SERVICES
 SHALL DEVELOP AND IMPLEMENT A PLAN FOR REPORTING, INSPECTING  AND  MONI-
 TORING OF CHILD CARE SERVICES TO ENSURE COMPLIANCE WITH THIS SECTION.
   §  3.  Paragraph  (f) of subdivision 2 of section 3000-c of the public
 health law, as added by chapter 373 of the laws of 2016, is  amended  to
 read as follows:
   (f)  [Nothing  in]  THE  PROVISIONS  OF this section shall NOT require
 [any] AN eligible person or entity WHICH IS NOT A CHILD CARE SERVICE  AS
 DEFINED  IN  SECTION  TWENTY-FIVE  HUNDRED-H OF THIS CHAPTER to acquire,
 possess, store, make available, or administer an epinephrine auto-injec-
 tor.
   § 4. Section 921-a of the education law, as amended by chapter 200  of
 the laws of 2017, is amended to read as follows:
   §  921-a.  On-site  epinephrine  auto-injector.  1.  School districts,
 boards of cooperative educational services, county vocational  education
 and  extension  boards,  charter  schools, and non-public elementary and
 secondary schools in this state [may] SHALL provide and maintain on-site
 in each instructional  school  facility  epinephrine  auto-injectors  in
 quantities  and  types  deemed by the commissioner, in consultation with
 the commissioner of health, to be adequate to ensure ready and appropri-
 ate access for use during emergencies to any  student  or  staff  having
 anaphylactic  symptoms  whether  or  not  there is a previous history of
 severe allergic reaction.
   2. School districts, boards of cooperative educational services, coun-
 ty vocational education and extension boards, charter schools, and  non-
 public  elementary  and  secondary  schools  in  this  state, any person
 employed by any such entity, or employed by  a  contractor  of  such  an
 entity  while performing services for the entity may administer epineph-
 rine auto-injectors in  the  event  of  an  emergency  pursuant  to  the
 requirements of section three thousand-c of the public health law.
   § 5. Section 260.10 of the penal law is amended by adding a new subdi-
 vision 4 to read as follows:
   4. BEING A CHILD CARE SERVICE PROVIDER, HE OR SHE FAILS TO COMPLY WITH
 THE  PROVISIONS OF THE ANAPHYLACTIC POLICIES ADOPTED BY THE COMMISSIONER
 OF HEALTH PURSUANT TO SECTION TWENTY-FIVE HUNDRED-H OF THE PUBLIC HEALTH
 LAW, INCLUDING THE REQUIRED AVAILABILITY AND USE OF AN EPINEPHRINE AUTO-
 INJECTOR, WHICH RESULTS IN HARM TO A CHILD UNDER THE CARE OF SUCH  CHILD
 CARE SERVICE PROVIDER.
   § 6. This act shall take effect immediately.

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  218--B
 
                        2019-2020 Regular Sessions
 
                             I N  S E N A T E
 
                                (PREFILED)
 
                              January 9, 2019
                                ___________
 
 Introduced  by Sen. BENJAMIN -- read twice and ordered printed, and when
   printed to be committed  to  the  Committee  on  Health  --  committee
   discharged, bill amended, ordered reprinted as amended and recommitted
   to  said  committee  --  reported  favorably  from  said committee and
   committed to the Committee on Finance --  committee  discharged,  bill
   amended,  ordered reprinted as amended and recommitted to said commit-
   tee
 
 AN ACT to amend the public health law, in relation to requiring  anaphy-
   lactic policies for child care services
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. This act shall be known and may be cited as "Elijah's Law".
   § 2. Section 2500-h of the public health law, as added by chapter  579
 of the laws of 2007, is amended to read as follows:
   §  2500-h.  Anaphylactic  policy  for  school districts AND CHILD CARE
 PROVIDERS. 1.  (A) The commissioner, in consultation  with  the  commis-
 sioner  of  education, shall establish an anaphylactic policy for school
 districts setting forth guidelines and procedures  to  be  followed  for
 both  the  prevention  of  anaphylaxis  and  during  a medical emergency
 resulting from anaphylaxis.    Such  policy  shall  be  developed  after
 consultation with representatives of pediatric physicians, school nurses
 and other health care providers with expertise in treating children with
 anaphylaxis, parents of children with life threatening allergies, school
 administrators,  teachers, school food service directors and appropriate
 not-for-profit corporations representing allergic  individuals  at  risk
 for anaphylaxis.
   (B)  THE  COMMISSIONER, IN CONSULTATION WITH THE COMMISSIONER OF CHIL-
 DREN AND FAMILY SERVICES, SHALL ESTABLISH  AN  ANAPHYLACTIC  POLICY  FOR
 CHILD  DAY  CARE PROVIDERS AS DEFINED IN SECTION THREE HUNDRED NINETY OF
 THE SOCIAL SERVICES LAW SETTING FORTH GUIDELINES AND  PROCEDURES  TO  BE
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
              

                       [ ] is old law to be omitted.
                                                            LBD01766-08-9

 S. 218--B                           2
 
 FOLLOWED  FOR  BOTH  THE  PREVENTION OF ANAPHYLAXIS AND DURING A MEDICAL
 EMERGENCY RESULTING FROM ANAPHYLAXIS. SUCH  POLICY  SHALL  BE  DEVELOPED
 AFTER  CONSULTATION  WITH  REPRESENTATIVES  OF  PEDIATRIC PHYSICIANS AND
 OTHER  HEALTH  CARE  PROVIDERS  WITH EXPERTISE IN TREATING CHILDREN WITH
 ANAPHYLAXIS, PARENTS OF CHILDREN WITH LIFE THREATENING ALLERGIES,  CHILD
 DAY  CARE  ADMINISTRATORS  AND PERSONNEL, AND APPROPRIATE NOT-FOR-PROFIT
 CORPORATIONS REPRESENTING ALLERGIC INDIVIDUALS AT RISK FOR  ANAPHYLAXIS.
 THE  COMMISSIONER, IN CONSULTATION WITH THE COMMISSIONER OF CHILDREN AND
 FAMILY SERVICES, SHALL CREATE  INFORMATIONAL  MATERIALS  DETAILING  SUCH
 ANAPHYLACTIC POLICES TO BE DISTRIBUTED TO CHILD DAY CARE CENTERS.
   (C)  IN  ESTABLISHING  POLICIES  PURSUANT  TO  THIS  SUBDIVISION, SUCH
 COMMISSIONERS SHALL CONSIDER EXISTING REQUIREMENTS, AS WELL  AS  CURRENT
 AND BEST PRACTICES FOR SCHOOLS AND CHILD DAY CARE PROVIDERS ON ALLERGIES
 AND  ANAPHYLAXIS,  INCLUDING THOSE IN PLACE FOR CHILD CARE CENTERS REGU-
 LATED BY THE NEW YORK CITY DEPARTMENT  OF  HEALTH  AND  MENTAL  HYGIENE.
 SUCH  COMMISSIONERS  SHALL  ALSO  CONSIDER  THE VOLUNTARY GUIDELINES FOR
 MANAGING FOOD ALLERGIES IN SCHOOLS AND EARLY CARE AND EDUCATION PROGRAMS
 ISSUED BY THE UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES,  TO
 THE EXTENT APPROPRIATE FOR THE SETTING.
   (D)  THE  COMMISSIONER  SHALL CREATE INFORMATIONAL MATERIALS DETAILING
 SUCH ANAPHYLACTIC POLICIES TO BE DISTRIBUTED TO LOCAL SCHOOL  BOARDS  OF
 EDUCATION,  CHARTER SCHOOLS, BOARDS OF COOPERATIVE EDUCATIONAL SERVICES,
 AND CHILD DAY CARE CENTERS, AND SHALL MAKE THE  MATERIALS  AVAILABLE  ON
 THE DEPARTMENT'S WEBSITE.
   2.  The anaphylactic [policy] POLICIES established [by] UNDER subdivi-
 sion one of this section shall include the following:
   (a) a procedure and treatment plan, including EMERGENCY PROTOCOLS  AND
 responsibilities  for  school  nurses  and  other appropriate school AND
 CHILD DAY CARE personnel, for responding to anaphylaxis;
   (b) a training course  for  appropriate  school  AND  CHILD  DAY  CARE
 personnel for preventing and responding to anaphylaxis. THE COMMISSIONER
 SHALL,  IN  CONSULTATION  WITH  THE  COMMISSIONER OF CHILDREN AND FAMILY
 SERVICES AND THE COMMISSIONER OF EDUCATION, CONSIDER  EXISTING  TRAINING
 PROGRAMS  FOR  RESPONDING  TO  ANAPHYLAXIS IN ORDER TO AVOID DUPLICATIVE
 TRAINING REQUIREMENTS.  SUCH  PRE-EXISTING  PROGRAM  SHALL  FULFILL  THE
 REQUIREMENT  FOR  A  TRAINING COURSE PURSUANT TO THIS SUBDIVISION IF THE
 STANDARDS OF SUCH PRE-EXISTING PROGRAM ARE DEEMED BY THE COMMISSIONER TO
 BE AT LEAST AS STRINGENT AS THE STANDARDS PROMULGATED BY THE COMMISSION-
 ER IN THE DEVELOPMENT OF THE TRAINING COURSE BY THE STATE;
   (c) a procedure and appropriate guidelines for the development  of  an
 individualized  emergency  health  care plan for children with a food or
 other allergy which could result in anaphylaxis;
   (d) a communication plan for intake and dissemination  of  information
 PROVIDED  BY  THE  STATE regarding children with a food or other allergy
 which could result in anaphylaxis, INCLUDING A  DISCUSSION  OF  METHODS,
 TREATMENTS  AND  THERAPIES  TO  REDUCE  THE  RISK OF ALLERGIC REACTIONS,
 INCLUDING ANAPHYLAXIS; [and]
   (e) strategies for the reduction of the risk of exposure to anaphylac-
 tic causative agents, including food and other allergens[.]; AND
   (F) A COMMUNICATION PLAN FOR DISCUSSION WITH CHILDREN THAT HAVE DEVEL-
 OPED ADEQUATE VERBAL COMMUNICATION AND COMPREHENSION SKILLS AND WITH THE
 PARENTS OR GUARDIANS OF ALL CHILDREN  ABOUT  FOODS  THAT  ARE  SAFE  AND
 UNSAFE AND ABOUT STRATEGIES TO AVOID EXPOSURE TO UNSAFE FOOD.
   3. [On or before June thirtieth, two thousand eight] AT LEAST ONCE PER
 CALENDAR  YEAR,  SCHOOLS SHALL SEND A NOTIFICATION TO THE PARENTS AND/OR
 GUARDIANS OF ALL CHILDREN UNDER THE CARE OF SUCH SCHOOLS  TO  MAKE  THEM

 S. 218--B                           3

 AWARE  OF  SUCH ANAPHYLACTIC POLICIES, AS DEVELOPED BY THE COMMISSIONER.
 FOR CHILDREN UNDER THE CARE  OF  THE  CHILD  DAY  CARE  PROVIDERS,  SUCH
 NOTIFICATION  SHALL  BE PROVIDED BY THE CHILD DAY CARE PROVIDER WHEN THE
 CHILD  IS  ENROLLED  AND  ANNUALLY  THEREAFTER. SUCH NOTIFICATIONS SHALL
 INCLUDE CONTACT INFORMATION FOR PARENTS AND GUARDIANS TO ENGAGE  FURTHER
 WITH  THE SCHOOL OR CHILD DAY CARE PROVIDER TO LEARN MORE ABOUT INDIVID-
 UALIZED ASPECTS OF SUCH POLICIES.
   4. WITHIN SIX MONTHS OF THE EFFECTIVE DATE OF THE CHAPTER OF THE  LAWS
 OF TWO THOUSAND NINETEEN WHICH AMENDED THIS SECTION, [an] THE anaphylac-
 tic  [policy]  POLICIES  ESTABLISHED UNDER THIS SECTION shall be jointly
 forwarded by the commissioner [and]AS WELL AS the commissioner of educa-
 tion OR THE COMMISSIONER OF CHILDREN AND FAMILY SERVICES AS  APPROPRIATE
 to  each local school board of education, charter school, [and] board of
 cooperative educational services AND CHILD DAY CARE SERVICE PROVIDER, AS
 DEFINED IN SECTION THREE HUNDRED NINETY OF THE SOCIAL SERVICES  LAW,  in
 the  state.  Each such [board and charter school] ENTITY shall [consider
 and take action in response to such] IMPLEMENT OR UPDATE AS  APPROPRIATE
 THEIR  anaphylactic  policy  IN  ACCORDANCE  WITH THOSE DEVELOPED BY THE
 STATE WITHIN SIX MONTHS OF RECEIVING THE ANAPHYLACTIC POLICIES.
   5. THE ANAPHYLACTIC POLICIES ESTABLISHED  BY  THIS  SECTION  SHALL  BE
 UPDATED  AT  LEAST  ONCE  EVERY  THREE  YEARS, OR MORE FREQUENTLY IF THE
 COMMISSIONER  DETERMINES  IT  TO  BE  NECESSARY  OR  DESIRABLE  FOR  THE
 PROTECTION  OF CHILDREN WITH A FOOD ALLERGY OR OTHER ALLERGY WHICH COULD
 RESULT IN ANAPHYLAXIS.
   § 3. This act shall take effect immediately; provided that the  amend-
 ments  to  subdivision 3 of section 2500-h of the public health law made
 by section one of this act shall take effect one  year  after  this  act
 shall  have become a law. Effective immediately, the addition, amendment
 and/or repeal of any rule or regulation necessary for the implementation
 of this act on  its  effective  date  are  authorized  to  be  made  and
 completed on or before such effective date.